Category: Ghana

Citation: 2020 RLLR 102
Tribunal: Refugee Protection Division
Date of Decision: November 26, 2020
Panel: Sarah Acker
Counsel for the Claimant(s): Marianne B Lithwick
Country: Ghana
RPD Number: TB8-30911
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000126-000135

REASONS FOR DECISION

[1]       [XXX] (hereafter, “the claimant”) is a [XXX]-year old citizen of Ghana. He claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).^[1]

ALLEGATIONS

[2]       The claimant’s allegations are found in his Basis of Claim (“BOC”) form^[2] and amended BOC forms.^[3] In summary, the claimant fears persecution by the Ghanaian police and his community, particularly in the form of mob violence, on account of his sexual orientation as a bisexual man. The claimant fears that if he returns to Ghana he will be persecuted and/or killed.

DETERMINATION

[3]       The panel finds that the claimant has established that he faces a serious possibility of persecution on a Convention ground, namely, his membership in a particular social group – individuals with non-heteronormative sexual orientations – upon return to Ghana.

[4]       In making this determination, the panel has considered the Chairperson’s Guideline 9: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression (“SOGIE”).^[4]

ANALYSIS

Identity

[5]       The identity of the claimant has been established on a balance of probabilities through the certified true copy of his Ghanaian passport that was seized by the Minister,^[5] in addition to a copy of his Ghanaian birth certificate.^[6]

Credibility

[6]       When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their veracity.

[7]       Having reviewed all the evidence, the panel finds, on a balance of probabilities, that the claimant identifies as bisexual and fears persecution because of his sexual orientation if he returns to Ghana. While the panel also had credibility concerns about other parts of the claimant’s evidence, those concerns did not outweigh the allegations that were proven on a balance of probabilities. Given that the claimant has credibly made out key allegations and established a subjective fear of persecution, the other concerns are not determinative.

The claimant identifies as a bisexual man

[8]       The claimant testified credibly about his relationship with his long-time same sex partner,

W.Y.  The claimant met W.Y. when he was 9 years old through their mutual love for soccer, and grew up playing soccer together; they were the closest of friends. Eventually, their relationship became intimate when the claimant turned 15 years old. The claimant testified that even after their relationship became sexual, it took time for the two men to verbally acknowledge the nature of their relationship and express their feelings to one another. The claimant said that he was shy and needed to build up courage to tell W.Y. that he had feelings for him. When W.Y. said those feelings were reciprocal, the claimant was overwhelmed with happiness. The claimant submitted photos of himself and W.Y. attending community weddings together and in their soccer jerseys in support of his claim.^[7] The claimant testified to the content of these photos spontaneously and clearly. The panel finds the photographic evidence of their relationship credible.

[9]       The claimant spontaneously and clearly provided details about his relationship with W.Y. that were not found in his BOC forms. The claimant described W.Y.’s love of dance and music and W.Y.’s unparalleled ability to calm the claimant down and lift his spirits when he was feeling upset. The claimant described a physical and emotional attraction to his partner, and explained that he and W.Y. had a lot in common including their professional involvement in soccer and their religious upbringing. The claimant also testified credibly about the steps he and W.Y. took to hide their relationship, including their carefully timed visits, the claimant’s marriage to a woman, and their use of football’s masculine image in Ghana to hide their sexual orientations.

[10]     Therefore, the panel finds, on a balance of probabilities, that the claimant has established that he identifies as a bisexual man and was involved in an intimate relationship with a man in Ghana named W.Y.

The claimant has a subjective fear of being persecuted in Ghana on account of his sexual orientation

[11]     The claimant testified spontaneously about his country and community’s views towards homosexuality. When the panel asked the claimant about his upbringing, he explained that he and his family were deeply religious Muslims and there were rules dictating behavioural “do’s and don’t’s.” When the panel asked the claimant for an example of those “do’s and don’t’s,” the claimant immediately answered that a “don’t” includes two men sleeping together. The claimant explained that he was given a religious education as a young man, and learned that the Bible and Quran view male homosexual relationships as blasphemous and punish such behaviour by stoning. While the claimant never personally viewed members of the gay community being persecuted, he heard about instances of mob and police violence against gay people on the radio and in the newspapers. The claimant said that one radio station reported an instance of police violence against a gay individual and the commentators laughed during their reporting and agreed with the police abuse. The claimant added that both Christians and Muslims preached against homosexuality in his community.

[12]     The panel asked the claimant why he did not make a claim for asylum in the United States when he was contracted to [XXX] in [XXX] from [XXX] to [XXX] of 2018.^[8] The claimant answered that, during that time, he was on a work visa to [XXX]. He had not experienced any persecution because of his sexuality in Ghana and did not think anyone at home would discover him and W.Y. The claimant added that he did not even know about the concept of “asylum” at the time and the thought of seeking that kind of protection did not come to his mind.

[13]     The panel finds this explanation reasonable. In 2018, the claimant was a young man looking to further his [XXX]. He was in love with his same-sex partner in Ghana, had taken steps to hide this relationship from everyone he knew, and did not think he would be discovered. Therefore, the panel does not draw a negative credibility inference with respect to the claimant’s failure to make an asylum claim in the United States during his time in [XXX].

[14]     The panel asked the claimant why he did not make an asylum claim in Chicago upon his arrival there in [XXX] 2018 after fleeing persecution in Ghana. The claimant testified that he was staying with a Ghanaian friend in Chicago, and although he was in the United States he was surrounded by the Ghanaian expatriate community and did not feel safe telling them why he left Ghana. The claimant said that he did not know anything about the formal process of seeking asylum when he arrived in the United States, and his primary objective was to leave Ghana for his personal safety. Once in Chicago, the claimant began researching how to be safe as an individual with a non-heteronormative sexual orientation and he found a Canadian Pride Parade website and reasoned that Canada would protect him. This is the reason he came to Canada for protection.

[15]     The panel finds this explanation reasonable. At the time he fled Ghana, the claimant was a [XXX]-year old man. He testified that he stopped his studies at the age of [XXX] in order to pursue his soccer career. The claimant had no background in law and was not aware of the concept of “asylum” until he crossed the Canadian border and border services agents directed him to a lawyer. The claimant testified that he feared for his safety while staying with his friend in the United States because his friend’s community was Ghanaian. For that reason, the claimant did not perceive his situation in the United States as safe and sought refuge approximately two and a half months later in Canada. Given the claimant’s explanation, age, and level of education, the panel does not draw a negative credibility inference with respect to the claimant’s failure to seek asylum during his time in the United States from [XXX] to [XXX] of 2018.

[16]     The panel finds, on a balance of probabilities, that the claimant was so fearful of being persecuted on account of his sexual orientation in Ghana that he did not even feel safe in the United States because he was living among the Ghanaian expatriate community.

[17]     After assessing the claimant’s evidence about how the Ghanaian government and his community treat members of the gay community, the panel finds, on a balance of probabilities, that the claimant has a subjective fear of persecution in Ghana on account of his identity as a bisexual man. As a result, this claim is being assessed under s. 96 of the IRPA, and the panel finds the claimant has established a nexus to a convention ground, namely, his membership m a particular social group – individuals with non-heteronormative sexual orientations.

[18]     While the panel had credibility concerns about how the claimant lost contact with W.Y. and the details surrounding how the claimant’s relationship with W.Y. was discovered, these concerns were insufficient to overcome the findings that the claimant was in a relationship with W.Y. and that he has made out his sexual orientation on a balance of probabilities.

OBJECTIVE EVIDENCE

[19]     The objective evidence in this case supports the claimant’s allegations.

[20]     Section 104 of the Ghanaian Criminal Code (“the Code”) criminalizes same-sex conduct between consenting adults, and refers to such conduct as “unnatural carnal knowledge.” Consensual same-sex intimacy with an individual over 16 years old is categorised as a misdemeanour, with a sentence of up to 3 years’ imprisonment.^[9]

[21]     Prominent Ghanaian politicians have voiced their opposition to and disdain for the gay community. In February and July of 2017, the Speaker of Parliament, Professor Mike Ocquaye, referred to homosexuality as an “abomination” and called for stricter laws against same-sex conduct.^[10] During a radio interview in April 2018, the Second Deputy Speaker of Parliament, Alban Bagbin, said that “homosexuality is worse than [an] atomic bomb.”^[11] In March 2020, an organizer for the main opposition party in Ghana, the National Democratic Congress, said: “Homosexuality is a disease. In veterinary [medicine] you don’t have to condone homosexuality; you have to kill all animals that attempt same-sex mating. Why should we humans do that?”.^[12]

[22]     Homophobic rhetoric is not limited to national and local government officials – it pervades Catholic, Evangelical, Islamic, and traditional religious institutions as well as Ghanaian media outlets. While these forces, along with the criminalization of same-sex activity in Ghana, rarely lead to prosecution of gay individuals, they contribute to a climate of discrimination, violence, arrests, threats, and punishment of the gay community both in public and private settings.^[13]

[23]     With respect to persecution of gay individuals in the private setting, the National Documentation Package (“NDP”) for Ghana, Item 6.2, documents numerous instances of parents disowning their children and forcing them out of their family homes upon discovering their sexual orientation. This aligns with the claimant’s evidence that, since his sexual orientation became known in his community, the claimant has lost contact with his parents due to their anger towards him for “shaming” his family due to his sexual orientation. Counsel submitted country documentation from February 2020, found in Exhibit 7, wherein the Ashanti Region Chief Imam, Sheikh Muumin Abdul Haroun, described homosexuality as an “evil that must not be countenanced in any way because it is despised by God.” This evidence also aligns with the claimant’s testimony about the deep-seated homophobia in his masque and Muslim community.

[24]     NDP Item 6.2 documents instances of violence perpetrated against members or perceived members of the gay community.   In January 2016, a mob of students at a high school in Kumasi, the claimant’s home town, attempted to lynch three male students who were accused of engaging in homosexuality. The attackers were armed with clubs, machetes, and stones. The school responded by expelling the three intended victims. According to NDP Item 6.6, in August 2019 police briefly detained a young man reporting a robbery because the man mentioned he was gay.^[14] In August 2014, a mob in Walewale threatened to lynch a 21-year old male student because he was gay. Police responded by arresting the intended victim.^[15]  An article submitted by counsel notes that, as recently as October 2020, a mob stormed an area of Accra armed with machetes, stones, and sticks in search of a suspected gay person, and the mob leader said: “We want to make Ghana a hell for gay practitioners and their supporters.”^[16]

[25]     The panel therefore finds, on a balance of probabilities, that the claimant’s subjective fear of persecution in Ghana on account of his identity as a bisexual man has an objective basis, and is well-founded.

STATE PROTECTION

[26]     There is a presumption that a state can protect its citizens unless the state is in a situation of complete breakdown. A claimant can rebut this presumption with clear and convincing evidence to the contrary.

[27]     In this case, the agent of persecution is the state because the forward-facing persecution the claimant would face in Ghana is, in part, at the hands of state authorities – that is, members and supports of the Ghanaian government and police force.

[28]     The NDP reflects mixed evidence with respect to the availability of state protection for members of the gay community. Item 6.6 states that certain individuals in the Ghanaian Police Force have made efforts to protect members of the gay community, such as Assistant Commissioner of Police Jones Blantari.^[17] The NDP adds that some gay rights activists have noted that police attitudes towards protecting members of the gay community are slowly changing, “with community members feeling more comfortable with certain police officers whom they could turn [to] for assistance” [emphasis added].^[18]

[29]     However, despite evidence of individual members of the Ghanaian police force making positive efforts to protect members of the gay community, the objective country evidence depicts an overall lack of adequate state protection for members of the gay community in Ghana.

[30]     NDP Item 6.6 indicates that, as recently as 2019, there were reports of police reluctance to investigate claims of assault or violence against members of the gay community. While there were no reported cases of police or government violence against members of the gay community in 2019, the NDP notes that stigma, intimidation, and the attitude of the police toward gay persons were factors in preventing victims from reporting incidents of abuse.^[19] Other reports cited instances of members of the gay community being arbitrarily arrested by police when seeking their help, and being subject to extortion as well as sexual and physical abuse by police.^[20]

[31]     Based on the claimant’s personal circumstances as well as the objective country documentation, the panel finds, on a balance of probabilities, that the claimant has rebutted the presumption of state protection with clear and convincing evidence. As someone who identifies as bisexual, there is no state protection available to the claimant in Ghana.

INTERNAL FLIGHT ALTERNATIVE

[32]     The panel has also considered whether a viable internal flight alternative exists for the claimant.

[33]     Given that the state is one of the agents of persecution, that homosexual activity between consenting adults is criminalized in Ghana, and there is no objective evidence that shows the state does not have control over the entire country of Ghana, the panel finds, on a balance of probabilities, that the claimant would face a serious possibility of persecution throughout Ghana and therefore a viable internal flight alternative does not exist for him.

CONCLUSION

[34]     The claimant testified credibly that he identifies as a bisexual man and spent many years in a same sex relationship with a fellow soccer player, W.Y. The claimant also provided reasonable explanations about why he did not make asylum claims in the United States. While the panel had credibility concerns with certain parts of the claimant’s evidence, those concerns did not speak to the heart of the claim and were not sufficient to rebut the presumption of truth in this case.

[35]     Having considered the claimant’s testimony, the supporting evidence presented, and the objective evidence, the panel finds there is a serious possibility that the claimant would face persecution at the hands of the Ghanaian state, its agents, his family, community, and the Ghanian community at large if he returned to Ghana.

[36]     For the aforementioned reasons, the panel concludes that the claimant is a Convention refugee pursuant to s. 96 IRPA.

[37]     Therefore, the claim is accepted.

^[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).

^[2] Consolidated List of Documents (CLOD), Exhibit 2.

^[3] CLOD, Exhibits 5, 10.

^[4] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

^[5] CLOD, Exhibit 1

^[6] CLOD, Exhibit 6, p.1.

^[7] CLOD, Exhibit 6, pp. 4-12, 32-33.

^[8] The claimant provided evidence to support his employment as a [XXX] in [XXX] during this time. See CLOD, Exhibit 6, pp.23-30.

^[9] National Documentation Package (“NDP”) for Ghana, dated 30 March 2020, Item 6.6.

^[10] Ghana NDP, Item 6.1.

^[11] Ghana NDP, Item 6.6

^[12] Ghana NDP, Item 6.4.

^[13] Ghana NDP, Items 6.1, 6.2.

^[14] Ghana NDP, Item 6.6.

^[15] Ghana NDP, Item 6.2.

^[16] CLOD, Exhibit 9, pp. 5-7.

^[17] Ghana NDP, Item 6.6, p. 24.

^[18] Ibid.

^[19] Ghana NDP, Item 6.6.

^[20] Ghana NDP, Items 6.3, 6.4.

Citation: 2019 RLLR 133
Tribunal: Refugee Protection Division
Date of Decision: October 15, 2019
Panel: Avril Cardoso
Counsel for the Claimant(s): Said Assiani
Country: Ghana
RPD Number: TB8-19083
ATIP Number: A-2021-00256
ATIP Pages: 000087-000098

REASONS FOR DECISION

[1]       The claimant alleges he is a citizen of Ghana and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration Refugee Protection Act (IRPA)¹.

DETERMINATION

[2]       I find that the claimant has established a serious possibility of persecution on a Convention ground, namely his sexual orientation as a gay man.

ALLEGATIONS

[3]       The claimant’s allegations are set out in his Basis of Claim form (BOC). He alleges that he is a citizen of Ghana and fears persecution at the hands of society and the state in his home country because he is a gay man.

ANALYSIS

[4]       The main issues in this case are 1E exclusion and credibility including failure to claim in the United States.

[5]       In deciding this claim, I considered Guideline 9². The purpose of Chairperson’s Guideline 9 is to promote greater understanding of cases involving sexual orientation and gender identity and expression (SOGIE) and the harm individuals may face due to their non-conformity with socially-accepted SOGIE norms. This Guideline addresses the particular challenges individuals with diverse SOGIE may face in presenting their cases before the Board and I was mindful of these issues in coming to a decision in this claim.

[6]       I also considered all of the evidence including the oral testimony and documentary evidence entered as exhibits.

Identity

[7]       The personal and national identity of the claimant is established on a balance of probabilities through the certified true copy of his Ghanaian passport³ and testimony.

1E Exclusion

[8]       Section 98 of IRPA provides that a person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.

[9]       Article 1E specifies that the Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

[10]     The Federal Court of Appeal in Zeng⁴ articulated the legal test that must be applied when deciding whether Article 1E applies. All relevant factors to the date of the hearing should be considered to determine whether a claimant has status substantially similar to that of its nationals in the third country. If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded.  If the answer is yes, the RPD must consider and balance various factors.  Such factors include but are not limited to the reason for the loss of status, whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts.

The claimant is not excluded based on his residence in the United States

[11]     The claimant entered the United States (U.S.) on [XXX], 2009 on a U.S. Fiancé Visa which was issued on February 19, 2009 with an expiry date of August 3, 2009⁵. The claimant testified that his fiancée was murdered on [XXX], 2009 prior to their intended marriage on March 20^th, 2009.

[12]     The claimant testified that he subsequently married another U.S. national, [XXX] on [XXX], 2014.

[13]     The claimant testified that his spouse applied for a green card for him on April 25, 2015 but it was denied. He testified that his lawyer told him he would have to return to Ghana and his wife could then apply to sponsor him. He testified that he refused to return to Ghana because he feared for his life.

[14]     The claimant testified that he was able to obtain a U.S. work permit in 2015 as well as a driver’s licence through his wife. He said the work permit expired in 2017 and the renewal was refused as he was informed he must return to Ghana.

[15]     The claimant testified that he has been divorced from his wife in the U.S. for about five months.

[16]     I find that the claimant does not have status substantially similar to nationals in the U.S. as of the date of hearing. The claimant’s temporary status in the U.S. based on the Fiancé Visa expired as of August 3, 2009⁶. The claimant’s application to adjust his immigration status in the U.S. was denied in a decision dated January 22, 2016 from the U.S. Department of Homeland Security⁷. The claimant’s attempt to renew his work permit was refused. The U.S. biometrics report indicates that the claimant was issued an EAD Combo Card⁸. The country documentation for the United States indicates that an EAD (Employment Authorization Document) grants employment authorization to individuals along with an order of supervision for persons who have been ordered to be deported or removed from the U.S.⁹. This document also indicates that conditions may include periodic meetings with immigration officials, obtaining travel approval and providing written notice of change of address and confirms that work authorizations for persons under an order of supervision must be renewed annually. This evidence cumulatively demonstrates that the claimant did not have status in the U.S. substantially similar to that of its nationals. He was to be deported and no longer had the ability to work since his work permit renewal was denied.

[17]     I also find that the claimant did not previously have status in the U.S. substantially similar to that of its nationals for the reasons set out above. The U.S. country documentation with regard to the ability of a U.S. citizen to sponsor a foreign spouse who is under an order of supervision or deportation is scarce¹0. However, this document indicates that an application for a green card may be made through an adjustment of status application and that a petition to re-open deportation proceedings may not be approved until the alien has resided outside the United States for a 2-year period beginning after the date of marriage¹¹. The evidence demonstrates that the claimant did make an application for an adjustment of his status which was denied. His testimony that he was advised that a sponsorship application could be commenced after he returned to his home country is consistent with the U.S. country documentation.

[18]     In conclusion, the claimant is not excluded pursuant to section 98.

Credibility

[19]     When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their veracity.

[20]     I find the claimant to be credible on a balance of probabilities.

The claimant’s sexual orientation in Ghana

[21]     The claimant testified that when he was about twelve years old, he felt attracted to boys. He testified that he tried to hide these feelings on the outside but inside he felt he could not control his desires. The claimant testified that in Ghana, boys are expected to like girls.

[22]     The claimant testified that two of his maternal uncles were gay and he witnessed one of his uncles stoned to death when he was fifteen years old.  The claimant testified that people in his village believed that his mother’s family was cursed because his uncles were homosexual and he demonstrated similar tendencies. He said he was sent to a herbalist, made to wear a necklace and sent to the church pastor all in attempts to “cure” him from his feelings toward men/boys.

[23]     In the claimant’s BOC¹², he states that to avoid suspicion that he was gay, he began a relationship with [XXX] in 2001 and that the community perception of his sexual orientation improved after he had a child with [XXX] in August 2002.

[24]     The claimant testified about a same sex relationship with [XXX], a young man he met. He testified that they met in 2002 or 2003 for sexual encounters at the home he was sharing with [XXX]. The claimant described his recollection of [XXX] and said that he was nice and he remembered [XXX] dimples when he smiled. He was also able to provide details about [XXX] siblings and described him as being patient. The claimant testified that [XXX] discovered him with [XXX] during an intimate encounter and the relationship with [XXX] ended. He testified that he left the village and went to Accra, a large city because he was afraid of being punished if his relationship with [XXX] was discovered in his home town.

[25]     I find the claimant’s testimony regarding his bisexual relationships in Ghana to be credible. His testimony was straight-forward, spontaneous and detailed and was generally consistent in both his BOC narratives. The claimant was tearful during the hearing as he described his experiences related to his sexual orientation and his efforts to conceal his true feelings.

BOC omission

[26]     The claimant submitted a BOC dated August 20, 2018¹³. He then submitted an amended narrative dated September 19, 2019¹⁴.

[27]     When asked why the original BOC narrative did not set out all the details, he testified that at the time the first BOC was completed, his state of mind was impaired.  He testified about being detained after crossing the border into Canada and said he was given 10 days to complete the BOC. The claimant testified that he believed he attempted self harm and said he could not remember clearly but recollected that he had a belt around his neck and then saw two guards standing beside him. The claimant’s counsel submitted that there were no material inconsistencies between the narratives and the amended narrative only provided more details about the claimant’s sexual orientation.

[28]     I find the claimant’s explanation credible. I agree with counsel that the amended BOC provides more detail about the claimant’s personal history and is consistent with the first BOC. As well, I accept the claimant’s testimony that he was detained and that his state of mind and the short timeframe to complete the BOC would more likely than not affect his ability to provide all the details about his sexual orientation. Despite noting that the claimant had the assistance of counsel at that time, I find the claimant’s explanation reasonable in these circumstances.

The claimant’s delay in leaving Ghana is not determinative

[29]     Based on the claimant’s evidence, he left his home village in [XXX] 2004 and was working in Accra until [XXX], 2009 when he obtained his U.S. Fiancé Visa and was able to leave Ghana.

[30]     The claimant testified that he was struggling to make ends meet in Accra and worked as a [XXX]. He said he grew his hair long to try to conceal his identity because he feared being recognized by people he knew in his village and worried that his relationship with [XXX] would become known. He said being an openly gay man is illegal in Ghana.

[31]     I find that the claimant’s explanation for the delay in leaving Ghana is reasonable. I accept his evidence that his fiancée paid for his air fare and he did not have the means to leave. As well, his actions in leaving his home village and relocating to a larger urban area are indicative of subjective fear.

Failure to claim in the United States

[32]     The claimant testified that he left Ghana on [XXX] 2009 to marry [XXX] who he met when he was working as a [XXX] in Accra. He testified that XXXX was murdered on [XXX] 2009 a day before their wedding. The claimant testified that he did not tell [XXX] about his bisexual feelings at that time because he did not want to break her trust as she was very kind to him.

[33]     The claimant testified he then began a relationship with [XXX] and they married on [XXX] 2014. He testified that he was alone in the United States and relied on [XXX] for support and repressed his feelings toward men as he did not want to hurt her.

[34]     The claimant testified that in July 2018 he discovered that the two children he had with [XXX] were not his own and that she had been seeing another person. This other person threatened the claimant that if he did not leave, there would be problems since he did not have status in the U.S. According to the claimant’s BOC, he went to a gay bar and had a brief relationship with [XXX]. The claimant testified that he came to Canada because he had no legal status to remain in the U.S., suffered the loss of his fiancée and effectively the loss of two daughters who he thought were biologically his own. He testified that he feared returning to Ghana because he no longer wanted to repress his feelings toward men and gay men are not permitted to live openly in Ghana.

[35]     I find the claimant’s testimony regarding his failure to claim in the third country (U.S.) credible. I accept the claimant’s explanation for not making a claim in the United States as reasonable in the circumstances he found himself in.

[36]     In making this finding, I am taking into account the SOGIE guideline. As stated in the guideline, individuals with diverse SOGIE recognize and act on their SOGIE differently. Furthermore, an individual’s self-awareness and self-acceptance of their SOGIE may present as a gradual or non-linear process.  As such, there is not standard set of criteria that can be relied upon to establish an individual’s identification with a particular SOGIE.

[37]     With regard to the failure to claim asylum in the U.S. after his fiancée died in 2009 and until he married [XXX] in 2014, the claimant stated in his BOC that he felt “destroyed” and had nowhere to go and felt like he was a “nobody”. The immigration documents from the U.S. indicate that the claimant faced deportation as of January 22, 2016 when a decision was issued about his request to have his status adjusted. However, he was able to obtain a work permit which expired in 2017. Since 2017, the claimant testified he was working underground and the evidence demonstrates that his deportation was not imminent. Taking into account the claimant’s state of mind after the loss of his fiancée, the discovery that his daughters were not biologically his own and the absence of evidence that there were active deportation efforts, I find his failure to claim in the U.S. does not demonstrate a lack of subjective fear. Once the claimant was threatened in July 2018 about his immigration status by [XXX] new boyfriend, he took prompt steps to claim protection in Canada. The claimant indicated in his BOC that he did not claim asylum in the U.S. because of his traumatic experiences there with the death of his fiancée and the discovery that his daughters were not biologically his own as well as the anti-immigrant policies of the U.S. government.

Claimant’s involvement with the gay community in Canada

[38]     The claimant testified that since coming to Canada, he wants to live openly as a gay man. He asked to be referred to as gay at the hearing. He said he was tired of hiding his feelings. The claimant testified that he has repressed his feelings for so long that he is not yet ready to commit to a relationship. The claimant testified that he met [XXX] on May 10, 2019 and they have seen each other four to five times. He testified that they have been to a 519 soccer game together and go to Albion mall food court quite often or to a nearby African restaurant. [XXX] testified at the hearing and his evidence was generally consistent with that of the claimant. There was a minor inconsistency regarding the number of times they have seen each other however I do not find this inconsistency to be material.

[39]     The claimant also testified that he has been attending The 519 community centre and has learned about LGBT rights and discrimination. He submitted a statement of membership from 519¹⁵. He said talking with the staff about his feelings helped him and at first he was shy about expressing himself but now he is able to talk about things he previously kept inside. The claimant testified that his confidence has improved and he feels he no longer has to hate the feelings he has.

[40]     I find, on a balance of probabilities that the claimant is a gay man based on the totality of the evidence and the SOGIE guidelines.

Well-Founded Fear

[41]     The country documentation indicates that same sex acts between consenting male adults is criminalized under section 104 of the Ghana Criminal Code. Although same sex acts rarely lead to prosecution, the criminalization of this activity contributes to a climate of frequent discrimination and violence of LGBTQ people in the public and family spheres¹⁶.

[42]     Under pressure from various groups, Ghana’s president Akuffo-Addo retracted his stance on the decriminalization of same sex sexual acts and this fomented stigmatisation of sexual and gender minorities¹⁷.

[43]     According to a 2018 Human Rights Watch report “Ghana is a country of profound contradictions. Despite its status as a liberal democracy, with a constitution that guarantees fundamental human rights to all its citizens, a relatively responsive police force, and an independent national human rights institution, the government has consistently rejected calls by United Nations bodies, including the Human Rights Council during the Universal Periodic Review of Ghana’s human rights record, to repeal the law against “unnatural carnal knowledge.” Ghanaian society is also very religious.”¹⁸ This report also indicates that homophobic statements by officials and religious leaders contribute to a culture of homophobia and incites violence against gay people. Despite being a party to several international human rights treaties, Ghana has yet to proactively address violence and discrimination toward LGBT Ghanaians.

[44]     Therefore, the evidence establishes an objective basis for the claimant’s fear of persecution should he live openly as a gay man in Ghana.

State Protection

[45]     In assessing the issue of state protection, there is a presumption that the state is capable of protecting its citizens except in situations where the state is in complete breakdown. A claimant who alleges that state protection is not available must persuade the Board that, on a balance of probabilities, the evidence establishes that state protection is inadequate. The onus is on the claimant to approach the state for protection in situations where state protection might reasonably be forthcoming.

[46]     The country documentation indicates that LGBTI persons face police harassment and extortion attempts. There were reports police were reluctant to investigate claims of assault or violence against LGBTI persons, although some activists said that police attitudes were slowly changing. Gay men in prison were vulnerable to sexual and other physical abuse. While there were no reported cases of police or government violence against LGBTI persons during the year, stigma, intimidation, and the attitude of the police toward LGBTI persons were factors in preventing victims from reporting incidents of abuse¹⁹.

[47]     Country documents further indicate that the police have tried to reach out to LGBT people and ensure their protection however, despite these efforts LGBT people are still frequently subject to various forms of violence. This can be attributed to the government’s reluctance to decriminalize unnatural carnal knowledge²⁰. The 2017/18 Amnesty International report indicates that LGBTI people continued to face discrimination, police harassment and violence. The Speaker of Parliament said to the media that homosexuality should be completely illegal and punishable by law²¹.

[48]     I find that the claimant has successfully rebutted the presumption of state protection with clear and convincing evidence.

[49]     As stated in the SOGIE Guideline, a claimant cannot be expected to conceal his SOGIE identity as a way to avoid persecution in his home country. Given the attitudes of the police and government toward LGBT people, the claimant cannot reasonably expect adequate state protection. Therefore, adequate state protection would not be reasonably forthcoming to the claimant in Ghana.

Internal Flight Alternative (IFA)

[50]     Given the criminalization of same sex sexual activity between males, I find, on a balance of probabilities, that there is a serious possibility of persecution throughout Ghana and therefore a viable IFA does not exist.

CONCLUSION

[51]     Having considered all of the evidence, I find there is a serious possibility that the claimant would face persecution in Ghana. I find that the claimant is a Convention refugee and I accept his claim.

(signed)           Avril Cardoso

October 15, 2019

¹ Immigration and Refugee Protection Act, S. C. 2001, c. 27, as amended.
² Guideline 9 on Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation and Gender Identity and Expression, issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration Refugee Protection Act, effective as of May 1, 2017 (the “SOGIE Guideline” or “Guideline 9”)
³ Exhibit 1.
⁴ M.C.I. v. Zeng, Guanqiu F.C.A. No. A-275-09
⁵ Exhibit 1
⁶ Exhibit 5
⁷ Ibid.
⁸ Exhibit 4
⁹ Exhibit 7, Item 3.7
¹⁰ Exhibit 7, Item 3.7
¹¹ Ibid.
¹² Exhibit 6
¹³ Exhibit 2
¹⁴ Exhibit 6
¹⁵ Exhibit 6
¹⁶ Exhibit 3, Item 6.1 and Item 1.5
¹⁷ Exhibit, Item 6.1
¹⁸ Exhibit 3, Item 6.3
¹⁹ Exhibit 3, Item 2.1
²⁰ Ibid.
²¹ Exhibit 3, Item 2.3

Citation: 2019 RLLR 128
Tribunal: Refugee Protection Division
Date of Decision: April 23, 2019
Panel: S. Charow
Counsel for the Claimant(s): El-Farouk Khaki
Country: Ghana
RPD Number: TB8-14776
ATIP Number: A-2021-00256
ATIP Pages: 000062-000066

DECISION

[1]       MEMBER: This is the decision for [XXX] file TB8-14776.

[2]       I’ve considered your testimony and the other evidence in this case and I’m ready to render my decision orally.

[3]       In making this decision I’ve considered and applied the guidelines for sexual orientation.

[4]       You’re claiming to be a citizen of Ghana and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[5]       I find that you are a Convention refugee for the following reasons.

[6]       The allegation of your claim can be found in your Basis of Claim Form at Exhibit 2. In short, you allege persecution as a member of a particular social group, namely that you are in danger of being harmed because of your identity as a gay man, as being gay is illegal in Ghana.

[7]       You also allege that you cannot live freely as a gay man in Ghana and that your community may harm you because of your sexual orientation. You’ve alleged that your community has attempted to harm you after you were discovered with your same sex partner shortly before leaving Ghana.

[8]       Your personal identity as a citizen of Ghana has been established by your Ghanaian passport at Exhibit 1. I find that, on a balance of probabilities, identity and country of reference have been established.

[9]       In terms of your general credibility, I have found you to be a credible witness and I therefore accept what you’ve alleged in your oral testimony and in your Basis of Claim Form at Exhibit 1.

[10]     You testified in a straightforward manner about your fears without any embellishment and there were no inconsistencies that went to the core of the claim that were not explained. Your testimony was spontaneous, including being able to provide details about your previous experience of harassment and violence after your sexual orientation was revealed to your community.

[11]     You also provided credible testimony about the interactions that you had with your family after they learned about your sexual orientation. You also testified credibly about the fears that you have about the harm that may come to you should you return to Ghana.

[12]     I noted that there was extensive and detailed testimony about your previous same sex partner in Ghana, including the how the relationship developed, what you liked about your partner, and you were able to give personal information about your partner that was consistent with the level of the relationship alleged.

[13]     I also noted that in support of your claim you provided numerous credible documents, including an affidavit or … or a statutory declaration from your mother who was the person that you told in Ghana about your sexual orientation. You provided a statutory declaration from a family friend who was the person you hid with after you escaped from your community when they found out about your sexual orientation.

[14]     I also noted extensive and multiple correspondence over the app gay Romeo. I noted that this correspondence was detailed, wasn’t just a hi how are you with a back and forth conversation between multiple people. I noted that this correspondence went further back than just in the timeframe immediately prior to your hearing. I noted that when we discussed gay Romeo you were able to describe how you chose your profile photos, how you choose who to correspondent with, and what you’re looking for from this application.

[15]     In terms of the evidence, I note that it’s available at Exhibits 6 though 8.

[16]     I did have some concerns about your failure to claim asylum in the United States. You had been three times after you first understood yourself to be gay. Twice for student work programs and then once after your sexual orientation had been revealed in Ghana.

[17]     You explained that you did not claim on the first two occasions that you had been there because your life was not in danger at that time. You wanted to go back to Ghana and be with your family. I do find this explanation to be reasonable.

[18]     However, you explained that on your third trip to the United States after your life was in danger in Ghana, you did not file a claim for asylum based on a discussion with someone you met in a hostile in New York. You said that talking with this person made you scared that you would have to return to Ghana because of the attitudes of the current administration, specifically the … the attitudes that they have towards immigrants and asylum seekers. However, when you told me about this conversation that you had you didn’t know the last name of the person you had talked with.

[19]     You didn’t do any of your own research into the situation for immigrants or asylum seekers in the United States, and you didn’t meet with a lawyer in the United States to assess your options. You did have valid visitor status at that time and yet you still crossed irregularly into Canada.

[20]     While I’m not commenting on what the actual attitudes towards immigrants or asylum seekers is in the United States, I don’t think that you specifically have provided a reasonable explanation for your failure to claim asylum in the United States, and this does negatively impact your credibility. However, this issue is not determinative in your case, and I make this finding based on the strength of your evidence, including your testimony and your supporting documents.

[21]     Even with one noted omission and an inconsistency as per my earlier questioning in this hearing, I do find that the overall credibility of your testimony and your supporting documents outweighs my other concerns. I do find you to be credible.

[22]     I’m therefore satisfied that you are a gay man, that the events have occurred as alleged in your testimony and in your Basis of Claim Form, and that there is a serious possibility that you would face persecution at the hands of either the Government of Ghana or your community should you return to Ghana.

[23]     I find that you’ve established your subjective fear. I find that there is a link between what you fear and one of the five Convention grounds. Specifically, that as a gay man from Ghana you are a member of a particular social group because of your sexual orientation. Therefore, your claim has been assessed under Section 96 of the Immigration and Refugee Protection Act.

[24]     I further find that you have an objective basis for your fear because of the documented country conditions for Ghana as per the evidence in the Exhibit 3, the National Documentation Package for Ghana.

[25]     I note Sections 6.2, 6.3, and 2.1. I’ll summarize them. Under the Criminal Code same sex sexual conduct is a criminal offence. This … this law is used to threaten, arrest, and punish individuals for engaging in same sex sexual conduct.

[26]     There is stigma, intimidation, and negative attitudes towards people in the LGBT community. Dozens of LGBT people have, on numerous occasions, been attacked by mobs or members of their own families or subject to assault, intimidation, or extortion.

[27]     And I also note that there are homophobic statements in public support of the criminalization of same sex sexual conduct by public officials and religious leaders, which serve to perpetrate or perpetuate societal prejudices against gay and bisexual individuals and even encourage more hate speech, hate crimes, and discrimination by both State and non-State actors.

[28]     In consideration of this I find that your subjective fear has an objective basis. I find that you have a well-founded fear of persecution due to your sexual orientation.

[29]     Due to his evidence, I also find that there is clear and convincing evidence that State protection would not be reasonably forthcoming in your case, and it wouldn’t be reasonable to ask you to seek such protection as the State is a possible agent of persecution.

[30]     As well, given these conditions and the circumstances you’ve described in your claim, I further find that there would be a serious possibility of persecution anywhere in Ghana, as same sex sexual activity is criminalized throughout the country.

[31]     As the test for an internal flight alternative fails on the first prong, I find there is no viable internal flight alternative for you anywhere in Ghana.

[32]     Based on the totality of the evidence I find the claimant to be a Convention refugee. Your claim is therefore accepted.

[33]     So, this will conclude today’s hearing. I’d like to thank everyone for their participation. Thank you, counsel and thank you, sir.

———- REASONS CONCLUDED ———-